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83 N.C. App. 425

State v. Roark

Court of Appeals of North Carolina

Decided November 25, 1986

Court of Appeals of North Carolina · decided 1986-11-25

Cited by 4 later decisions — most recently October 1994

4 state decisions

Key passage — most relied on by later courts

“Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."... Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. (citations omitted)”

quoted by 1 later decision, including 89 N.C. App. 424 - State v. Hyleman

Relies on Illinois v. Gates · United States v. Leon · Aguilar v. Texas

Good law ✅— No negative treatment on recordhow we know

Decided 1986-11-25

View the full empirical analysis of this case →

WEBB, Judge.

¶1The defendant assigns error to the admission of the evidence seized as a result of the searches pursuant to the two warrants. We believe this assignment of error has merit.

¶2Prior to Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527, reh’g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed. 2d 1453 (1983) the evidence would clearly have to be excluded. The affidavits in support of the search warrants are inadequate under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.ED. 2d 637 (1969). There is nothing in the affidavit which shows the information given by the informant is reliable. Gates relaxed the two-pronged test that grew from Aguilar and Spinelli, i.e., that the affidavit must show both the basis of the informant’s knowledge and that he is reliable. It adopted a “totality of circumstances” test, i.e., “whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548. The Supreme Court made it clear that what it called a “bare bones” affidavit, one which says only that the affiant has received reliable information from a credible person and does believe, is not sufficient for a magistrate to find probable cause for a search.

¶3*427Our Supreme Court adopted the totality of circumstances test in State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984). In this case we believe that we are bound by the cases cited above from the United States Supreme Court and the Supreme Court of North Carolina to hold that it was error for the magistrate to issue search warrants based on affidavits which only said a “reliable and confidential informant personally contacted the applicant with the information” that stolen property was on the premises of defendant.

¶4In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed. 2d 942 (1984), the United States Supreme Court held that not all evidence obtained by the use of an invalid search warrant should be excluded from evidence. It held that when an officer reasonably relies on a search warrant issued by a detached and neutral magistrate, evidence seized during the search is admissible although the warrant is later determined to be invalid. The Supreme Court said that one instance in which the exception does not apply is when the warrant is based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 923, 104 S.Ct. at 3421-3422, 82 L.Ed. 2d at 699, quoting Brown v. Illinois, 422 U.S. at 610-611, 95 S.Ct. 2254, 45 L.Ed. 2d 416. We believe a reading of the United States Supreme Court cases shows that they consider a “bare bones” allegation such as we have in this case to be so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. For that reason this case would not be an exception to the exclusionary rule. It was error to admit the evidence seized in the searches.

¶5We do not discuss the defendant’s other assignment of error because the question it poses may not arise at a new trial.

¶6New trial.

Judges Eagles and Parker concur.
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